United States District Court, D. Oregon
OPINION AND ORDER
PAUL PAPAK, Magistrate Judge.
Plaintiffs filed this putative class action against defendant Tri-County Metropolitan Transportation District of Oregon ("TriMet"), alleging that TriMet engages in a pattern or practice of failing to pay its bus and train operators for all compensable work in violation of the federal Fair Labor Standards Act ("FLSA") and Oregon law. Now before the court are TriMet's "Motion for Partial Summary Judgment as to All State Law Claims" ("State Law MPSJ") (#146) and "Motion for Partial Summary Judgment as to Max Operators' FLSA Overtime Claims" ("FLSA MPSJ") (#153). For the reasons discussed below, TriMet's State Law MPSJ is denied and its FLSA MPSJ is denied in part and granted in part.
On December 19, 2012, named plaintiff Allen Margulies sent a letter to TriMet, indicating that he intended to file a lawsuit "on behalf of all current employees and former employees of TriMet" due to TriMet's alleged failure to compensate its employees for all hours worked and its alleged failure to pay overtime wages. Ex. A, Declaration of Joel B. Young ("Young Decl."), #124-1, at 1. The caption of the letter states that it is a notice of a class action pursuant to Oregon Rule of Civil Procedure 32H. Id. On January 14, 2013, named plaintiffs Stephen Fung and Christopher Day also sent TriMet a notice of intent to file a class action "on behalf of all current and former employees of TriMet." Ex. C, Young Decl., #124-1, at 1. Like Margulies, Fung and Day also cited TriMet's alleged failure to fully compensate its employees as the basis of the class action. Id. On January 17, 2013, TriMet responded to both letters, stating that, as public employees, Margulies, Fung, and Day were subject to a collective bargaining agreement, which governed the wage issues raised in the letters. Ex. B, Young Decl., #124-1, at 1; Ex. D, Young Decl., #124-1, at 1.
Thereafter, on January 22, 2013, Margulies filed an action against TriMet in the Multnomah County Circuit Court, alleging various claims under the FLSA and Oregon law on behalf of himself and "all other similarly situated individuals currently and/or formerly employed by" TriMet. Ex. 3, Declaration of Jennifer Goodrich ("Goodrich Decl."), #122-3, at 1. On February 15, 2013, Margulies filed an amended complaint in the Multnomah County Circuit Court, adding Day and John Olsen as named plaintiffs. Ex. 4, Goodrich Decl., #122-4, at 1. On February 21, 2013, TriMet was served with a copy of the complaint and the amended complaint. Ex. 5, Goodrich Decl., #122-5, at 1-3.
On February 25, 2013, Fung and Day sent TriMet a second notice of their intent to file a class action, again citing TriMet's alleged failure to fully compensate its employees as the basis of the suit. Ex. E, Young Decl., #124-1, at 1. TriMet responded on March 14, 2013, noting that Fung and Day's claims were already included in the action filed in the Multnomah County Circuit Court and again stating that, as public employees, Fung and Day were subject to the collective bargaining agreement, which governed the wage issues raised in their letter. Ex. F, Young Decl., #124-1, at 1. Fung sent yet another notice on May 29, 2013. Ex. G, Young Decl., #124-1, at 1. TriMet again responded that Fung's claims were part of the pending lawsuit and, in any case, the applicable collective bargaining agreement governed the wage issues raised in Fung's letter. Ex. H, Young Decl., #124-1, at 1.
Meanwhile, on March 20, 2013, TriMet removed the Multnomah County case to this court on the basis of federal-question and supplemental jurisdiction. Notice of Removal, #1, at 1-3. On June 17, 2013, plaintiffs filed their second amended complaint. In their second amended complaint, plaintiffs allege that TriMet fails to pay bus and train operators for: "(1) non-commute travel time between disparate start and end points of operators' scheduled runs, (2) the differential between scheduled run times and actual run times, (3) pre-departure time, (4) mandatory meetings with supervisors, (5) mandatory medical examinations, and [(6)] any applicable overtime due for such compensable time." Second Amended Complaint, #18, ¶ 4.
On October 10, 2013, this court granted TriMet's motion for partial summary judgment and dismissed plaintiff-bus drivers' FLSA claims. October 10, 2013, Opinion and Order, #61, at 40. The court also granted plaintiffs' motion to conditionally certify the action as a representative collective action under 29 U.S.C. § 216(b) and set a deadline of January 27, 2014, for collecting consent-to-join forms. Id. As of this date, 458 plaintiffs have opted to join the action, including the four named plaintiffs.
On September 8, 2014, this court granted in part TriMet's motion for partial summary judgment on all of plaintiffs' state law claims due to sixty-five plaintiffs' failure to provide timely notice under the OTCA. September 9, 2014, Opinion and Order, #136. The court, however, denied TriMet's motion as it applied to twenty-eight plaintiffs.
TriMet filed the State Law MPSJ (#146) on December 31, 2014, seeking summary judgment on plaintiffs' state law claims for violation of Oregon's minimum wage and overtime statutes under ORS 653.268. On January 28, 2015, plaintiffs filed their resistance (#156). On February 27, 2015, TriMet filed its reply (#161). On February 24, 2015, this court granted plaintiffs' Motion for Order to Allow Sur-Reply (#164). On March 4, 2015, plaintiffs filed their sur-reply (#165).
TriMet filed the FLSA MPSJ (#153) on January 23, 2015, seeking summary judgment on plaintiffs' claim alleging TriMet's failure to pay overtime wages to MAX operators in violation of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1). On March 4, 2015, plaintiffs filed their resistance (#166). On March 23, 2015, TriMet filed its reply (#180). On April 1, 2015, this court denied (#185) plaintiffs' contested Motion to Allow Sur-Reply (#183).
The court heard oral argument on both of TriMet's motions on April 14, 2015. Following oral argument, Plaintiffs filed a statement regarding supplemental authority offered by TriMet during the proceedings (#189). On April 16, 2015, TriMet moved to strike Plaintiffs' statement (#189). The matter is fully submitted and ready for decision.
TriMet operates and provides public transportation services throughout Multnomah, Washington, and Clackamas counties. TriMet manages various bus and train routes, schedules, and working conditions for its employees. Zatarain Depo., Young Decl., #157, Ex. A, 106:1. The employment of TriMet's various operators is guided by the Working and Wage Agreement ("WWA"). Lomax Decl., #148, Ex. 1 ("WWA, #148-1"). Under the WWA, TriMet operators are paid a normal hourly rate and time and one-half of their regular pay rate for all overtime worked, which consists of all work over eight hours per regular work day as well as work over forty hours per week, unless otherwise specified in the WWA. #148-1, Art. 1, § 6, ¶ 1.
On a day-to-day basis, TriMet uses Hastus, a computer software system, to schedule its routes of operation and calculate pay amounts for its operators. Zatarain Depo., Young Decl., #157, Ex. A, 25:25. The route assignments themselves are contained within collective documents called "Run Listings" that determine driving time, report time, and clear time. Id. at 25:25. These determinations are used to formulate the calculation for total pay for an operator's daily assignment. Lomax Depo., Young Decl., #157, Ex. B, 25:25. TriMet bus operators are paid daily between $1.75 and $2.50 in "road relief" when they work an assignment ending in a location that differs from its starting point. WWA, #148-1, Art. 2, § 1, ¶ 2g. TriMet rail operators are paid between $3.50 and $15.00 in "road relief." WWA, #148-1, Art. 2, § 9, ¶ 11a. TriMet does not consider "road relief" compensation for time worked. WWA, #148-1, Art. 2, § 1, ¶ 2b.
Per the WWA, in instances where a bus or MAX train arrives late to its relief point, the relief bus or MAX operator takes over operation of the vehicle at that time and is paid based on the scheduled run rather than the late start. WWA, #148-1, Art. 2, § 1, ¶ 2b.
Approximately once every three months, all operators submit bids to work various scheduled run assignments that are awarded on the basis of seniority. Lomax Decl., #148, ¶¶ 10-11. Run assignments are posted at TriMet's garages and rail yards to allow for the operators to become aware of their details before submitting bids. After bidding concludes, operators are aware of their scheduled work assignments for the upcoming quarter. Id. at ¶ 11.
On their routes, operators begin at one point and end at another, purportedly requiring them to engage in "non-commute" travel time between those points once a scheduled run ends. Olsen Decl., #43. Operators who commute to work from their home must travel from their "end-shift point" by another means of transportation to the point at which they began their route, called their "start-shift" point, in order to recover their personal vehicle or begin their commute back to their home. Zatarain Depo., Young Decl., #157, Ex. A, 44-47:20. This travel time, called "Start-End Travel Time, " is not considered ordinary commute travel and exists only as a product of TriMet's route and scheduling practices for the convenience and cost efficiency of TriMet. Id.
If time between two parts of a "split run" amounts to not more than one hour, a TriMet operator is automatically paid for the time between the two parts. WWA, #148-1, Art. 2, § 1, ¶ 2f. If, on the other hand, that time amounts to more than one hour, the time is considered unpaid break time. WWA, #148-1, Art. 2, § 1, ¶ 5a. Although not specifically articulated in the WWA, TriMet requires operators to submit a "Time Slip" to recover additional wages when scheduled runs arrive late, when they are required to perform other unscheduled work, when they spend time meeting with a manager when they are off-duty, or when they arrive late to their destination while on a run. Lomax Decl., #148, ¶¶ 21, 25-26; WWA, #148-1, Art. 2, § 1, ¶ 2b. Between these "split runs, " TriMet operators are required to engage in non-commute travel between the geographical end point of the first run and the geographical start point of the second run. Olsen Decl., #43, 3. Like "Start-End Travel Time, " this "Split-Shift Travel Time" is caused by TriMet's scheduling through Hastus and is for TriMet's financial and logistical convenience. Zatarain Depo., Young Decl., #157, Ex. A, 44-47:20. Beyond the wages allotted for split-run delays of less than one hour, TriMet does not pay overtime for "Split-Shift Travel Time." Zatarain Depo., Young Decl., #157, Ex. A, 28:10-13.
Relief operators must relieve initial operators at relief locations that may be geographically distant from the relief operators' home garage. Relief operators arrive early to the relief location based on a policy instructing them to take a bus or train that is "at least two (2) buses and/or trains ahead of the bus and/or train that would get such Operator to the relief point at the exact time of (or just before) the relief that such Operator is making." Pl.'s Response to State Law MPSJ, #156, 4 (citing Olsen Decl., #43; Morgan Depo., Young Decl., #157, Ex. C, 28:10-13). This policy results in relief operators arriving at their relief locations before the scheduled relief time. Zatarain Depo., Young Decl., #157, Ex. A, 87:12-21. Plaintiffs dub this time difference "Pre-Departure Time" and allege that it is not provided for in the WWA. If a relief operator arrives late to his or her relief location, the operator may be charged with an "oversleep, " which can carry a penalty of one day's pay and, potentially, termination. Morgan Depo., Young Decl., #157, Ex. C, 24-26.
In certain situations, TriMet operators are not compensated for (1) time spent meeting with supervisors in connection with payroll corrections; (2) travel time from a relief point to the location of a meeting that an operator is obligated to attend with a supervisor; and (3) the time spent between the end of a daily run assignment and the beginning of the meeting. See Lomax Depo., Young Decl., #157, Ex. B, 62:12-18; Yazzolino Depo., Young Decl., #157, Ex. D, 18:17-24; Olsen Decl., #43. Plaintiffs refer to this collectively as "Meeting Time." According to TriMet's Executive Director of Transportation, "[w]hen an operator is not on duty and is required to attend a meeting with his or her supervisor, the operator completes a Time Slip in order to document the amount of time taken by the meeting and to receive payment for the time." Decl. Lomax, #148, ¶ 26.
Operators are required to obtain medical and other physical examinations in connection with their employment with TriMet. Lomax Depo., Young Decl., #157, Ex. B, 113:3-20; Olsen Decl., #43, ¶¶ 13-17. Plaintiffs maintain that TriMet's policy is to not provide compensation to operators for time spent in connection with obtaining these medical examinations.
Based on TriMet's Hastus scheduling, operators are paid according to a predetermined schedule rather than their actual drive time. Plaintiffs allege that scheduled runs can and do arrive at their end points after scheduled arrival times due to uncontrollable logistical and operational circumstances. Lomax Depo., Young Decl., #157, Ex. B, 58:14-59:7; Olsen Decl., #43, 3-4. Further, TriMet maintains a policy requiring operators to not operate their vehicles ahead of schedule so as not to run "hot." Olsen Decl., #43, ¶ 20. TriMet additionally requires walkthrough inspections of vehicles prior to arriving at a garage but does not allocate any scheduled time for those inspections. Young Decl., #157-10, Ex. I, 18. Finally, TriMet sets its automated running times so that scheduled run time is the same as or greater than 60-80% of actual run times. Zatarain Depo., Young Decl., #157, Ex. A, 41:4-12. Plaintiffs refer to the inconsistencies and regular lateness arising out of TriMet's policies and practice as "Routinely Late Time." Pl.'s Response to State Law MPSJ, #156, 7. TriMet monitors vehicle locations using GPS devices installed on all vehicles which track and record routine and late runs. Zatarain Depo., Young Decl., #157, Ex. E, 74-77. TriMet requires its operators to complete "Trip Sheets" that can be used to record run times and track when runs arrive at their end points after the scheduled arrival time. Id. at 77-79. TriMet records vehicles during their runs with static cameras and reviews those recordings. Lomax Depo., Young Decl., #157, Ex. B, 148:18-152:6. TriMet tracks "on-time performance" of its vehicles, which allows TriMet to determine when and whether those vehicles arrive after their scheduled arrival times, and has a policy of considering vehicles arriving up to five minutes late as arriving "on time." Callas Depo., Young Decl., #157, Ex. E, 26:13-27. TriMet also has received numerous reports from its operators informing it that vehicles regularly arrive later than scheduled. Young Decl., #157, Ex. H. Finally, TriMet's management is aware that operators, at times, do not turn in Time Slips when they arrive later than scheduled. Morgan Depo., Young Decl., #157, Ex. C, 42:13-18; Cook Depo., Young Decl., #157, Ex. F, 16:14-17.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990).
TriMet seeks summary judgment of Plaintiffs' state law claims for violation of Oregon's minimum wage and overtime statute, ORS 653.268. TriMet contends that summary judgment is appropriate because the parties operate under the WWA and, because public policy of the State of Oregon favors such agreements for public employees, the court should conclude that the WWA defines the circumstances under which TriMet must pay wages and overtime under ORS 653.268. Plaintiffs respond that they have a clear and unambiguous right under ORS 653.268 to receive overtime pay when they perform work in excess of forty hours per week, that they have not expressly waived their right to overtime wages with respect to several categories of work Plaintiffs maintain are not contemplated under the WWA, and that the definition of the word "work" should not be determined by the WWA but should be assigned its common, ordinary meaning.
Resolution of these issues hinges on the definition given to the terms "time worked" and "overtime worked, " neither terms being specifically defined in the WWA or by the relevant statute. TriMet argues that the meaning of those terms should be gleaned from the categories of work specifically addressed in the WWA. Plaintiffs counter that ORS 653.268 controls and that the term "worked" should be given its common, dictionary definition.
TriMet also moves for summary judgment on plaintiffs' first claim for relief alleging TriMet's failure to pay overtime wages to its MAX operators, or rail operators, in violation of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1). TriMet contends that summary judgment is appropriate because the MAX operators have been fully compensated for their working hours consistent with the requirements of the FLSA, the Portal to Portal Act, and the terms of the WWA. Def.'s FLSA MPSJ, #153, 1. Plaintiffs respond that TriMet has failed to pay MAX operators for all compensable time worked pursuant to the FLSA and the federally mandated straight time and time and one half of regular rate of pay for hours worked in excess of forty hours per week. Pl.'s FLSA MPSJ Response, #166, 1.
I. The Statutory Framework and Applicable Definitions of "Work"
A. Oregon Law
1. Relevant Wage Statutes
TriMet first moves against Plaintiffs' claim that TriMet violated ORS 653.268 by failing to pay operators for overtime worked in excess of 40 hours in any one week at a rate of time and one-half or compensatory time off at that rate if budgeted funds were not available. Second Amended Complaint ("SAC"), #18, ¶ 45. TriMet maintains that this claim must fail because ORS 653.268 does not offer a definition of "time worked" and does not enumerate the categories of work time for which Plaintiffs seek payment, which are, as discussed above: "Start-End Travel Time"; "Split-Shift Travel Time"; "Pre-Departure Time"; "Meeting Time"; and "Routinely Late Time." See Olsen Decl., #43. TriMet asserts that the Oregon Bureau of Labor and Industries ("BOLI") regulations concerning working conditions and overtime wages do not apply to TriMet's operators due to the existence of the WWA, a negotiated collective bargaining agreement. Def.'s State Law MPSJ, #146, 13-14. TriMet asks the court to "recognize that a public body and its union-represented employees may reasonably determine what constitutes compensable work time in their negotiated collective bargaining agreement." Id.
The two statutes of import for the purposes of TriMet's State Law MPSJ are ORS 653.261 and ORS 653.268, which apply to private sector and public sector employees, respectively. ORS 653.261(1) allows BOLI to "adopt rules prescribing such minimum conditions of employment, excluding minimum wages, in any occupation as may be necessary for the preservation of the health of employees." ORS 653.261(1). That statute suggests, without requiring, that BOLI may adopt rules related to overtime pay. ORS 653.261(1). The Commissioner of BOLI has, in fact, adopted rules related to overtime pay for "work" in excess of forty hours perk week. OAR 839-020-0030. It is uncontested, however, that these rules are inapplicable to TriMet employees. See Def.'s State Law MPSJ, #146, 9 ("[P]ublic employees like plaintiffs are subject to ORS 653.268, instead of other Oregon statutes...."); Pl.'s Response to State Law MPSJ, #156, 9 ("[P]laintiffs agree that these substantive rules are not applicable to TriMet employees").
Because TriMet is a public employer, the overtime requirements of ORS 653.268 are directly applicable to its employees. ORS 653.268. The relevant language of ORS 653.268(1) provides:
Labor directly employed by any public employer as defined in ORS 243.650 shall be compensated, if budgeted funds for such purpose are available, for overtime worked in excess of 40 hours in any one week, at not less than one and one-half times the regular rate of such employment. If budgeted funds are not available for the payment of overtime, such overtime shall be allowed in compensatory time off at not less than time and a half for employment in excess of 40 hours in any one week.'
2. The Applicable Definition of "Work" ...